When a formal probate is opened in Florida, the court will appoint a person to serve as Personal Representative (in other states, this is sometimes refer to as an “Executor” or “Administrator”). A common question which we run into in our estate practice is “Who is eligible to serve as Personal Representative?”
Florida law sets forth certain criteria which must be met in order be eligible. These require that the person:
(a) be 18 years of age or older;
(b) have never been convicted of a felony;
(c) be mentally and physically able to perform the duties of Personal Representative;
(d) be a resident of the State of Florida (unless the person meets certain degrees of relation to the decedent as set forth in Section 733.304, Fla. Stat.).
When a person petitions the probate court to be appointed as Personal Representative, he or she must state—under penalty of perjury—that these qualifications are met. Upon accepting appointment as Personal Representative, the person must sign and file an Oath of Personal Representative.” This instrument must specifically state that the four criteria are met.
Of equal importance, a person serving as Personal Representative must resign immediately if he or she knows that any of these qualifications are not met. When person was qualified at the time of being appointed as Personal Representative and later becomes ineligible, that person must file and serve notice on all interested persons. That notice must set forth the reason for the ineligibility and must state that an interested person may petition to remove the Personal Representative. An interested person who receives this notice has thirty days within which to petition for removal.
A Personal Representative who fails to comply with these requirements may be held personally liable for costs and attorneys fees incurred in any proceeding to remove a Personal Representative. This liability extends to a person who does not know—but should have known—of the facts which would have required resignation.
If you or a person you know has been designated as Personal Representative in someone’s Will, you should make the probate attorney aware of your eligibility to be appointed. It is better to address this up front than to have it become a problem at a later date.
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